The newly-signed Canada/United States/Mexico Agreement (CUSMA) on free trade provides greater property rights protections for foreign investors than currently exist for Canadians. Canadians should enjoy at least the same private property rights as foreigners who invest in Canada.

I recently introduced legislation, Bill C-222, An Act to amend the federal Expropriation Act (protection of private property), to allow for compensation to private property owners when regulatory, de facto or constructive taking of private property occurs in certain instances.

This happens when Government uses its statutory powers to regulate or restrict the property rights of an owner, without acquiring title to the land being adversely affected. The landowner feels the impact of the regulation as if the land has been expropriated

I introduced Bill C-222 to provide some protections from Government taking people’s property without compensation. It would appear that CUSMA addresses the issue raised in my Private member’s Bill C-222.

Canadian common law on de facto expropriation suffers from what some jurists refer to as “external incoherence”. In the present context of CUSMA, it decries the possibility that the rights of foreign investors in Canadian property are afforded more protection than are the rights of Canadian property owners.

The language used in the new trade agreement, which has rolled over from the 1992 NAFTA free trade agreement – “indirectly nationalize or expropriate” and “a measure tantamount to nationalization or expropriation” – clearly exists to ensure that compensation will be owed for both de jure and de facto expropriation by the expropriating country.

The scope of Article 14.8 is indeed wide: ‘measure’ “includes any law, regulation, procedure, requirement or practice”, and the definition of ‘investment’ is so expansive that it cannot be included here. Moreover, there is no allowance, as there is in Canadian common law, for express statutory language to extinguish the right to compensation.  

Other countries are more progressive than Canada when it comes to protecting the property rights of Canadians.

The fact that Canada was required to include private property protections in the international free trade agreement with the U.S, and Mexico is evidence of that.

My Private Member’s Bill C-222 is intended to start the process to modernize the concept of Canadian private property rights in Canadian law.

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